THIRUMARAYOOR SERVICE CO-OP. BANK LTD. v. MATHAI — 1987 DIGILAW 644 (KER)

Judgment :- 1. These Original Petitions are similar and raise common questions for decision. I shall state the facts in O.P. No. 7647 of 1984. the facts in the others being similar 2. Petitioner is a co-operative Bank registered under the Kerala Co-operative Societies Act. 1969 (for short the Act). The petitioner had advanced money to the 1st respondent. Respondents 2 to 4 had stood guarantee for payment of the amount so advanced. Since the loan was not repaid. the petitioner filed arbitration case A.R.C. No. 336 of 1981 under S.69 of the Act read with R.67 of the Rules framed thereunder. for recovery of the amount from respondents 1 to 4. After a few adjournments. the case stood posted to 11-5-1983 for respondents 1 to 4 to file their written statement. However. respondents 1 to 4 defaulted in appearing before the Arbitrator on that day. In the result. they were set ex parte and the matter was posted to 18-5-1983 of the evidence of the petitioner-plaintiff. On 18-5-1983. the petitioner adduced evidence. oral and documentary. Arguments were also heard. On the very same day. an application was filed on behalf of respondents 1 to 4 praying for acceptance of the written statement. which they filed along with the application. However. that application was dismissed by the Arbitrator. The case was pasted to 24-5-1983 for pronouncing the award. The award Ext. P1 was passed on 24-5-1983 when it is said. counsel for respondents 1 to 4 was also present before the 5th respondent Arbitrator. 3. Though it was alleged by the petitioner that a copy of the award had been sent to respondents 1 to 4 and that it was received by them on 31-5-1983. this case was rot persisted at the hearing before the Tribunal. According to respondents 1 to 4. only a gist of the award was communicated to them on 31-5-1983. They therefore applied for a certified copy of the award on 3-6-1983. The certified copy was ready on 15-7-1983. but was delivered to them only on 5-8-1983. Thereafter and without any delay. they filed an appeal against the award before the Kerala Co-operative Tribunal. the 6th respondent. which reached the latter through pest on 16-8-1983. The appeal was entertained. and was. in the event. allowed. The certified copy was ready on 15-7-1983. but was delivered to them only on 5-8-1983. Thereafter and without any delay. they filed an appeal against the award before the Kerala Co-operative Tribunal. the 6th respondent. which reached the latter through pest on 16-8-1983. The appeal was entertained. and was. in the event. allowed. The matter was remitted back to the Arbitrator to receive the written statement which respondents 1 to 4 had filed and to dispose of the matter afresh. on merits. after affording them opportunity to adduce evidence. It is this order of remand. Ext.P2. that is challenged. 4. Petitioner-Back had raised a preliminary objection before the Tribunal that the appeal should not be entertained. as it was time-barred. The contention was that time for filing the appeal had to be computed from the date of the award. namely. 24-5-1983 and therefore the sixty days time limited for filing the appeal expired on July 23.1983. The appeal filed on 16-8-1983 was thus clearly out of time. The Tribunal did not have the power to condone the delay. and therefore the appeal entailed rejection as filed out of time. This contention was not accepted by the Tribunal on the ground that the appeal had been filed with the certified copy obtained on the application made en 3-6-1983. The time requisite for obtaining copy of the award was liable to be excluded in the computation of time for filing the appeal. and if so. the appeal. was in time. 5. Counsel for the petitioner challenges Ext. P2. first on the ground that the appeal before the Tribunal was time barred. and second on the ground that there was no reason for making the order of remand. The second contention does not impress me. Respondents 1 to 4 had been declared ex parte on 11-5-1983. But they filed the written statement on 18-5-1983 with petition to receive it. The Arbitrator. however. declined the prayer. The Tribunal has thought it fit to condone the lapse on the part of respondents 1 to 4 and granted them as opportunity to defend the case. I do not find anything unreasonable or illegal in this exercise of the power vested in the Tribunal. I reject this contention. 6. The next question is whether the appeal had been filed is time. In this connection. certain provisions of the Act and the Rules have to be referred to. I do not find anything unreasonable or illegal in this exercise of the power vested in the Tribunal. I reject this contention. 6. The next question is whether the appeal had been filed is time. In this connection. certain provisions of the Act and the Rules have to be referred to. S.69 of the Act provides that any dispute of the nature mentioned therein and arising between a society and its members shall be referred to the Registrar for decision. S.70 prescribes the procedure for decision of the dispute and for passing of the award. The award is declared to be final subject to the provisions of S.82. S.82 provides that any person aggrieved by such an award may appeal to the Tribunal constituted under S.81 within sixty days from the date of the award. R.68 specifies the mode of communication of the award. A copy of the award has to be sent by registered post to the applicant. A gist of the award has also to be communicated to the defendants by past. is case they were not present at the time of delivery of the award. The procedure for filing the appeal under S.82 is laid down in R.98. Inter alia. the appeal has to be accompanied by two copies of the award. one of which shall be a certified or authenticated copy. R.122 applies the Code of Civil Procedure and the Civil Rules of Practice to the matters mentioned in the rule. Sub-rule (2) vests the Tribunal with power to do anything which appears to be necessary for the purpose of removing any difficulty in giving effect to the procedure laid down in the Rules. 7. According to counsel for petitioner. respondents 1 to 4 were present when the award was pronounced on 24-5-1983. The time for appeal therefore runs from that day. The period of 60 days is absolute and there is no question of exclusion of any time taken to obtain the certified copy of the award in computing the period of time for filing appeal. Therefore the period from 3-6-1983 to 15-7-1983. or 5-8-1983. as the case may be. is not liable to be excluded in the computation of the 60 days. The appeal filed on 16-8-1983 is therefore time barred. 8. According to counsel for respondents 1 to 4. Therefore the period from 3-6-1983 to 15-7-1983. or 5-8-1983. as the case may be. is not liable to be excluded in the computation of the 60 days. The appeal filed on 16-8-1983 is therefore time barred. 8. According to counsel for respondents 1 to 4. time runs only from 31-5-1983 when alone the gist of the award was communicated to them. and that the period from 3-6-1983 to 5-8-1983 is liable to be excluded in the computation of time for filing appeal. According to them. though the copy was ready on 15-7-1983 it was not delivered to them till 5-8-1983. and therefore. they are entitled to exclusion of the entire period from 3-6-1983 to 5-8-1983. 9. I may at the outset mention that it is not necessary to go into the controversy as to whether time runs from 24-5-1983 or 31-5-1983. This is because the appeal will be time barred. whichever of these dates is taken as the starting point. unless respondents 1 to 4 are entitled to exclude the period of time taken to obtain the certified copy of the order in the computation of time. Here again. it is immaterial whether the exclusion of the period is from 3-6-1983 to 15-7-1983 or 5-8-1983. because whichever of these two periods is excluded. the appeal will be in time. if the exclusion is permissible in law. The crucial question that arises for consideration is therefore whether the period of time requisite for taking the certified copy of the order is liable to be excluded in the computation of time for filing the appeal. 10. The award was passed in open court on 24-5-1983. A gist thereof was communicated to the defendants. The appeal has to be accompanied by a certified or authenticated copy of the award. The gist of the award is not sufficient for the purpose. Even otherwise. and to enable the defendants to file an effective. meaningful appeal. they have to peruse the terms of the award. the reasons in support of the same and then prepare the necessary grounds in challenge thereof. Preparation of the appeal requires study of the award. the points raised and the findings entered. The award may be a complicated one and it may be open to draw up the appeal memorandum in different ways. The appellants or their counsel may want to see the judgment before attacking it in appeal. Preparation of the appeal requires study of the award. the points raised and the findings entered. The award may be a complicated one and it may be open to draw up the appeal memorandum in different ways. The appellants or their counsel may want to see the judgment before attacking it in appeal. Even if the appellants or their counsel were present when the award was pronounced they may not carry all the points of the award in their memory. The legislature may also rot wish them to hurry to take a decision till they have well considered the award. It was therefore that the Privy Council stated in Jijibhoy N . Surty v. T.S. Chetttyar (AIR 1928 P.C. 103). that even in cases where no copy of the decree or of the judgment was required to be produced along with the appeal. the time taken for obtaining a copy of the decree or the judgment was liable to be excluded in computing the period of limitation for the appeal. 11. This view of the Privy Council has found acceptance with the Supreme Court in Additional Collector of Customs v. M/s. Best & Co. (AIR (966 S.C.1713) where the court reiterated that a party who intends to file an Appeal may desire to examine the decree or judgment before he launches a aurther proceeding. This decision was reaffirmed in Gaffoor v. Ayesha Begum (1970 II S.C.W.R. 431). 12. The question of exclusion of time is thus related to the twin requirements of production of a copy of the judgment or decree along with the appeal as a condition precedent to its entertainability. and the necessity of the appellant to study the same for the purpose of framing a proper appeal or even to decide whether further proceedings should be taken. If this be the position in law. it has to be held that the time requisite for obtaining a copy of the award is properly excludable in computing the period of time if copy of the award has not been served on the prospective appellant. 13. This view of the matter finds support in the decision of this court Lalithamma v. M.S. Co-operative Society (1979 KLT 894). Bhaskaran J. as he then was. 13. This view of the matter finds support in the decision of this court Lalithamma v. M.S. Co-operative Society (1979 KLT 894). Bhaskaran J. as he then was. stated as follows: "From a reading of R.68 of the Rules and S 82 (f) of the Act what emerges is that: (i) the appeal has to be preferred within sixty days from the date of the order or award; (2) unless the order or award was delivered in the presence of the parties. the date of communication of the award or the gist of the award or decision should be treated as the date of the order or award for the purpose of reckoning limitation; and as sub-rule (1) of R.98 requires the certified copy of the order. decision or award to accompany the memorandum of appeal. the time taken for obtaining a certified. copy of the order. decision or award also should be excluded from the period of limitation prescribed unless. instead of the gist an attested or certified copy of the order.decision or award. as the case may be. is sent by the arbitrator to the party concerned. while complying with the provisions of R.68 of the Rules. By way of obiter: I have observed in Para.3 of the judgment dated 17-7-1979 in O.P. No. 3858 of 1977-H. (1979 KLT 668). "If. as a matter of fact. the gist of the award is communicated by the arbitrator to the defendant under R.68 of the Rules. it may be that the period of limitation commences from the date of the receipt of it. and the time. if any taken for obtaining a certified copy could not possibly be excluded." When the impact of sub-rule (1) of R.98 also is taken into account. the safer and more correct view would be that. the time taken for obtaining the certified or attested copy of the order. decision or award. appealed against also is bound to be excluded while reckoning the period of limitation for filing the appeal." 14. Sri. P. V. Baby for the petitioner. heavily relied on the decision in Thankappan v. NTMV Co-operative Society 1979 KLT 668 in support of nil contentions. This decision which had also been rendered by Bhaskaran J. has been explained by him in the later decision in the passage extracted supra. Sri. P. V. Baby for the petitioner. heavily relied on the decision in Thankappan v. NTMV Co-operative Society 1979 KLT 668 in support of nil contentions. This decision which had also been rendered by Bhaskaran J. has been explained by him in the later decision in the passage extracted supra. There cannot be any dispute regarding the learned judge's decision regarding the commencement of the running of times but the question here is one of the exclusion of the time taken to obtain a copy of the award. where a copy thereof has not been served on the prospective appellant. This question did not arise for decision in Thankappan's case. 15. So long as R.98 mandates that a copy of the judgment should be produced along with the appeal. it only stands to reason that the time taken for obtaining a copy of the award should be excluded. Otherwise unintended consequences and hardships may ensue. While there is no provision for communication of the entire award to the defendants. there is equally no period of time prescribed within which a certified copy of the award applied for. should be granted to the appellants. The right of appeal is intended to be an effective remedy for the aggrieved party and if that right is not to be defeated. the previsions require such a construction as will advance it. That is possible only by reeding into the provisions. a condition for exclusion of the time taken for obtaining certified copy of the award where no-copy thereof has been served on the appellant. It has to be noted that there is no provision in the Act or the Rules barring such exclusion. 16. In this view of the matter. the order Ext. P2 of the Tribunal is correct. It has got to be sustained. The position is the same in the other Original Petitions also. The Original Petitions are therefore dismissed. The 5th respondent before whom the matters are now pending. is directed to dispose of the arbitration cases in question expeditiously and. at any rate. within a period of six months from the date of receipt of this judgment of a copy. No costs.